Fetal Protection in Wisconsin's

n the summer of 1998, the Wisconsin State legislature amended its child protection laws.' Under new child abuse provisions, Wisconsin judges can confine pregnant women who abuse alcohol or drugs for the duration of their pregnancies. South Dakota enacted similar legislation almost simultaneously. The South Dakota statute requires mandatory drug and alcohol treatment for pregnant women who abuse those substances and classifies such activity as child abuse. In addition, the South Dakota legislation gives relatives the power to commit pregnant women involuntarily for two days; a court order can place the pregnant women in custody for up to nine months. 2 These recent legislative "successes" follow scores of failed attempts by legislators in other states to establish fetal protection laws aimed at women who use and abuse drugs and alcohol during pregnancy.' Barbara Lyons, of the Wisconsin Right to Life Committee, boldly predicts that, by passing fetal protection laws, "Wisconsin has become a national model for this sort of legislation. ' '4 Indeed, the legislative urge to protect fetuses has not abated. In the 1999 legislative session, at least a dozen fetal protection statutes were proposed, including an additional nine that would punish women criminally for their behavior during pregnancy.' But even if a morally and socially justifiable fetal protection law is possible, it would have to be carefully conceived, drafted, and implemented. Our examination of the new Wisconsin statute reveals flaws in conceptualization and structure that render it morally suspect, constitutionally vulnerable, and a potential danger to both women and their future children. Wisconsin's action, and legislative initiatives like it, is not surprising. The image of newborns injured by prenatal